The EAT has just handed down a decision in the case of Omooba v (1) Michael Garrett Associates Ltd (2) Leicester Theatre Trust and I am worried about its implications. It seems to suggest that an employer can legitimately cave in to a social media campaign and dismiss an employee with controversial views – even if those views are protected by the Equality Act. They just have to make sure that it is the controversy that prompts the dismissal rather than the views themselves. Can that be right?

Ms Omooba is an actor and in 2019 she was given the leading role of Celie in the Leicester Curve’s production of “The Color Purple” – a musical based on the 1982 novel by Alice Walker. Soon after her casting was announced however a social media storm blew up over a Facebook post from some years earlier where she had expressed her religious beliefs about the sinfulness of same sex relationships. Integral to the role she was due to play was her character’s growing sexual relationship with another female character and this led to allegations of hypocrisy on her part. Ms Omooba refused to retract her Facebook post or issue a statement that distanced herself from it. Eventually the theatre decided that the outcry was so great that the viability of the whole production was under threat. Facing the prospect of demonstrations outside the theatre, and the real risk of a boycott from theatre-goers offended by casting someone with her views in what amounted to a lesbian role, they decided to withdraw the part from her and terminate her contract. What is more, her agents also dropped her – worried that other clients would leave them if Ms Omooba remained on the books.

Given Ms Omooba’s strongly held – and deeply sincere – beliefs about homosexuality, you might wonder why she was so keen to play the role of someone in a lesbian relationship. The rather suprising answer is that she hadn’t read the script. She had seen the film, of course, but that rather played down any suggestions of a physical relationship. Ms Omooba believed that there were different ways in which the character of Celie could be played and it did not register with her that the production she was a part of would require her to play someone in a sexual relationship with another woman.

Not only had Ms Omooba not read the script before being offered the part, she had not read the script before launching a claim for religious discrimination against both the theatre company and her agent. She did not get around to reading the script until shortly before the Tribunal hearing. When she was cross-examined she admitted that in fact she would not have been comfortable playing the part as it was written and so would have dropped out of the production.

It is difficult, when thinking about this case, to put out of your mind the fact that Ms Omooba is complaining about the withdrawal of a role that she would – once she realised what was involved – have refused to play. That fact certainly tends to diminish the sympathy that one might otherwise feel for her position. But this does not mean that she was not discriminated against. The EAT found that the Tribunal had been entitled to find that she was still subjected to a detriment when the part was withdrawn – having the part taken away from her was still an upsetting experience. The fact that she would have inevitably dropped out soon afterwards would merely limit her entitlement to compensation.

The “Reason Why”

In a direct discrimination claim the key question is why the claimant has been treated in the way complained of. So why did the theatre company withdraw the part from Ms Omooba and why did her agent refuse to keep her on its books? If the answer is “because of her religious belief” – even if that is only part of the reason – then that will be direct discrimination. There is no defence of justification. The question is not whether it was reasonable to withdraw the part or take her off the books. What matters is whether either decision was made because of her beliefs.

We also have to look at religion and belief discrimination through the prism of Article 9 of the European Convention on Human Rights. This means that Ms Omooba’s belief will be taken to include the manifestation of that belief in her Facebook post – unless there was something in the way she expressed herself “to which objection could reasonably be taken” (I wrote about this issue here). In this case, Ms Omooba’s Facebook post was a straightforward expression of her religious belief. It was made long before the role in The Color Purple came up and there is no suggestion that anyone could object to the manner in which she was expressing – or “manifesting” – her beliefs. It follows that if Ms Omooba had been treated less favourably because of her Facebook post, then that would amount to direct discrimination on the grounds of her religious beliefs.

But the Tribunal found that the reason the theatre company withdrew the part from her was not her religious beliefs – or her expression of them – but the need to protect the commercial viability of the production:

“… while the situation would not have arisen but for the expression of her belief, it was the effect of the adverse publicity from its retweet, without modification or explanation, on the cohesion of the cast, the audience’s reception, the reputation of the producers and “the good standing and commercial success” of the production, that were the reasons why she was dismissed. The centrality of authentic depiction of a lesbian role was a key part of the factual matrix. It was not necessary that she should be a lesbian, but it was important that she was not perceived by audience and company as hostile to lesbians. The decision to terminate was made to deal with the dysfunctional situation that arose from the context and circumstances of the public retweeting. The religious belief itself was not the reason why the theatre decided this. It was the commercial and artistic reality of the cluster of factors that it would not succeed.”

ET Decision, Para 107 (quoted by EAT at para 49)

As for the decision of her agent to stop representing her:

“On the evidence he terminated the contract because he thought a continued association would damage the business. The contract was not terminated because of her religious belief, but because in his mind the publicity storm about her part in The Color Purple threatened the agency’s survival.”

ET Decision, Para 112 (quoted by EAT at para 53)

So the Tribunal drew a distinction between Ms Omooba’s beliefs and the controversy that flowed from her beliefs becoming public. Was that a valid distinction?

The EAT held that it was. The President of the EAT said:

looking behind the explanations provided by the respondents (as the ET carefully did), the operative reasons (the commercial reality facing the theatre; the threat to the agency’s survival) were not informed by, or dependent upon, the claimant’s belief: faced with a similar reality or threat arising from an equivalent social media storm, but relating to an entirely different belief, the ET was plainly satisfied that the decisions would have been the same.

EAT para 156

The social media storm of course was entirely concerned with Ms Omooba’s beliefs. But the EAT held that this did not mean that the decision makers in the theatre company and the agency were acting because of those beliefs. That argument, said the EAT, “confuses reason with context”(para 158). The Tribunal had expressly found that Ms Omooba’s beliefs – or even the way in which she expressed them – were not the reason for the treatment she complained of. That was a conclusion they were entitled to reach.

This isn’t about justification. Ms Omooba didn’t lose her case because the reasons for terminating her contract were compelling or because the threat to the production was so severe. Those facts merely helped the Tribunal reach its conclusion that the dismissal really was because of the social media storm and not because of her beliefs. If an employer can persuade a Tribunal that it genuinely dismissed an employee because of external pressure then it seems that that will be enough. Even if the pressure was directly based on the protected characteristic, the dismissal will not amount to discrimination.

The EAT’s reasoning on this issue seems logical but I am left feeling rather uncomfortable with it. The facts of the case make it easy to feel that Ms Omooba’s claims lack merit – if only she had read the script before the audition this whole situation could have been avoided! But can we really allow an employer to rely on a ‘social media storm’ as a reason for dismissal if it clear that the storm is entirely based on an employee’s protected characteristic? What sort of incentive does that create?

Separating Motive from Reason

In Higgs v Farmor’s School Ms Higgs was dismissed following a complaint made about Facebook posts she had made which expressed her religious beliefs about same sex relationships and trans rights. The Tribunal found that the reason for dismissal was not her religious beliefs but the employer’s concern that her Facebook posts might lead parents to think that she held homophobic or transphobic views. The EAT held that this distinction could not stand. If the Facebook posts were a manifestation of the employee’s religious beliefs then a careful balance had to be struck in determining whether or not the employer could interfere with her Article 9 rights in order to protect the rights of others.

The difference between the cases of Higgs and Omooba – both decided by the same EAT judge – seems to be that in Omooba the Tribunal found that the reason for the treatment was the reaction to the Facebook posts rather than the Facebook posts themselves. The motivation was to save the show; the reason for the treatment was the social media storm. In Higgs on the other hand it was clear that the reason for the dismissal was the employee’s Facebook posts. The employer’s motivation was to avoid a backlash from parents, but that did not alter the fact that the reason for dismissal was the employee’s expression of her religious beliefs on Facebook.

Does that feel like a satisfying distinction? I’m not sure it does. Reason and motive are not so easy to separate. Suppose the theatre company had spotted Ms Omooba’s Facebook post before it had been seen by others and withdrew the part because it foresaw the social media storm that it would cause. You could then argue that the reason for withdrawing the part would have been the Facebook post itself and the underlying motivation was to avoid the hostile reaction it would cause. Suppose in Higgs the employer had done nothing until there was an actual campaign from parents objecting to her continued employment? Might it then have persuaded the Tribunal that the reason for the dismissal was the pressure from parents and that the Facebook posts were merely “context”? Does it all come down to timing?

I very much doubt that the EAT decision in Omooba will be the last word on this issue. Higgs is off to the Court of Appeal and I wouldn’t be surprised if Omooba follows. Ultimately we need a Supreme Court decision on exactly how discrimination based on religion or belief interacts with Article 9. A definitive answer may still be a year or two away and in the meantime employers are going to continue to struggle with the question of how to deal with employees whose deeply held beliefs create controversy or cause tension in the workplace. I don’t envy them that task.